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State v. Burnett

Decided: April 13, 1989.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
RICHARD BURNETT, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Essex County.

R. S. Cohen and A. M. Stein. The opinion of the court was delivered by Arnold M. Stein, J.A.D.

Stein

We granted leave to appeal from the Law Division's order suppressing evidence taken from defendant's dental office pursuant to a search warrant.

The motion judge suppressed all of the seized evidence on the ground that the search warrant "was impermissibly broad in scope." We reverse and remand for the entry of a modified order limiting the retention of the seized records to a time period of one year prior to the date of the first intercepted telephone conversation set forth in the affidavit submitted in support of the warrant.

Defendant is one of sixteen defendants named in six counts of a fifty-one-count indictment. Count one charges all defendants with conspiring to commit racketeering, N.J.S.A. 2C:41-2d and N.J.S.A. 2C:5-2; count two alleges that all defendants

engaged in racketeering, N.J.S.A. 2C:41-2c, and count four charges all defendants with conspiring to violate the various substantive criminal offenses set forth in the other counts of the indictment. Defendant is also charged with two other defendants with theft by unlawful taking (count twenty-nine, N.J.S.A. 2C:20-3), individually with a violation of the Dental Plan Organization Act (count thirty, N.J.S.A. 17:48D-18), and individually with uttering false records to the New Jersey Department of Insurance (count thirty-one, N.J.S.A. 2C:21-4a).

Dr. Burnett is a licensed dentist who operates a dental plan which provides dental care to members of Local 262, AFL-CIO. The plan's offices are located on the second floor of 137 Evergreen Place, East Orange, one floor below the offices of Local 262.

On September 22, 1986, Detective Howard E. Butt of the New Jersey State Police executed a 140-page affidavit in support of the issuance of arrest warrants for forty-two persons and search warrants for fourteen locations, including Dr. Burnett's office. The affidavit purported to outline facts to support the contention that Local 262 was controlled by a prominent organized crime "family." Defendants Ralph Vicaro and Anthony DeVingo are identified as the persons who exercised this control. According to the affidavit, court-authorized intercepted conversations between Vicaro and DeVingo discussed the illegal receipt and division of union money and of control over elected union officials.

The affidavit also recites an intercepted conversation between Vicaro and DeVingo which took place in the Cage Social Club in Newark on February 28, 1986:

The affidavit then recites that on March 18, 1986, in another intercepted conversation between Vicaro and DeVingo in the Cage Social Club:

Elsewhere in the affidavit, Butt recited:

In the February 28, 1986 conversation, DeVingo identified an arson that he helped arrange for Doctor Burnett with several other individuals and supplied details of how the money ...


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